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The Social Tracing of Digital Exploiting Abuse and the Development of Anti Monopoly Enforcement Norms and Discretions

YU Ling, JIANG Peng, CHEN Bai-hao

Journal of Jiangxi University of Finance and Economics 2024, 0 (4): 115-125.

Abstract （20）

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As an organized superpower, the rise of digital technology demonstrates a very strong technological backlash on society, which not only strengthens the shielding of material relationships from human relationships, but also exacerbates the trend of technology giants exploiting attention and data from other social groups under the illusion of contractual freedom. Due to the limitations of the current anti-monopoly legislative system and the limited enforcement resources, the anti-monopoly enforcement agencies have adopted a typical utilitarian approach to digital exploitative abuse, either selectively ignoring or arbitrarily using discretionary methods and benchmarks. The case discretion shows significant irregularity, further amplifying the exclusion effect of digital exploitative abuse on the social system and undermining the public’s normative expectations for the operation of anti-monopoly laws. The enforcement of anti-monopoly laws on digital exploitative abuse should be subject to three limitations: market forces, anti-monopoly damage, and recognition standards. The development of the regulatory discretion is an important path for anti-monopoly laws to respond to the enforcement challenges brought about by digital technology changes and improve enforcement efficiency. This requires a change in mindset, adding new elements of damage, establishing a formal case screening mechanism, and ultimately achieving the simultaneous development of cases of digital exploitative abuse and exclusive abuse. We still need to change the path, clarify the value calculation method of attention and data, and identify comparable products, periods, and geographic markets through comparative price differences, scientifically matching judgment benchmarks for attention and data exploitation.

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The Monopoly Risks of Public Data Licensing Operations and Their Responses

WANG Di

Journal of Jiangxi University of Finance and Economics 2024, 0 (4): 126-136.

Abstract （25）

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Public data authorization operation, as an important means to promote the circulation of public data, is a way to deeply unleash the potential value of public data, which is conducive to the construction of data infrastructure system and the promotion of market-oriented allocation reform of factors. However, there is an inherent monopoly risk in the current practice of public data authorization operations, which can have a detrimental effect on the release of public data value and hinder its release of public and economic value. It will also cause the legitimate interests of consumers to be unable to be protected, and consumers will become the end users of damaged interests. Public data has complex attributes of public-private integration, the non-transferability of the object of public data authorization operation, and the lack of effective competition in the public data authorization operation mechanism, together lead to the formation of monopoly risks in public data authorization operation. To deal with the monopoly risk of public data authorization operation, we should not only focus on ensuring fair competition in the authorization operation mechanism, but also comprehensively enhance the fairness and competitiveness of the authorization operation mechanism. We also need to strengthen the construction of the behavioral norms system for authorized operation entities, improve the behavioral norms for public data authorization operations, and establish internal compliance systems for authorized operation entities. In addition, we need to constrain government regulations from aspects such as regulatory scope, regulatory scale, and regulatory methods, and seek a reasonable balance between market-oriented operations and government regulation.

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On the Fiduciary Obligations of Data Holders

XIN Yuan

Journal of Jiangxi University of Finance and Economics 2024, 0 (3): 102-112.

Abstract （36）

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In the era of digital economy, the differences between data subjects will lead to privacy infringement, data monopoly, and other data power alienation problems. The unidirectional data empowerment protection theory is difficult to solve the practical dilemma. In the data value chain, the data holder, relying on the excessive expansion of data power, is in an unequal power relationship with the source and the user for a long time, and the double-layer trust relationship of data should be confirmed. The empowering protection model of data should move towards the regulatory model of trustee behavior based on fiduciary obligations, with obligations constraining the unlimited expansion of data power. The right to hold data is the fundamental right of the new property rights system for data, which varies with the form of data and is a limited exclusive right. The connotation of the right to hold data is to emphasize and protect the right to use data. Therefore, it is necessary to impose personal data protection obligations towards the source and competitive data obligations towards the user on the data holders, achieve a balance between the interests of all parties of the data with the dynamic model of empowerment and limitation, and regulate the paths by adopting an open data empowerment model and positive obligations, so as to achieve the dual core goals of protection and fair utilization of data.

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Research on the Realistic Dilemma and Response Strategies of Central-Local Taxation Power Allocation under the Principle of Tax Fairness

CHEN Ji-yu

Journal of Jiangxi University of Finance and Economics 2024, 0 (3): 113-124.

Abstract （36）

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As a core link in the design of the tax system, the allocation of central and local tax power plays a key role in the modernization process of the rule of law in taxation. The allocation of tax power is essentially a issue of financial resource allocation, aiming to seek a reasonable boundary between centralization and decentralization and between efficiency and equity. Practice has proved that there are information barriers between the central government and the local governments, that tax revenue and expenditure responsibility do not match, and that the disorder of tax competition among local governments has caused frequent tax collection and management chaos. Distributional unfairness triggered by the fiscal system will be transmitted to taxpayers through the tax law system, thus the allocation order of tax legislation, tax collection and administration, and tax income right to be standardized with the concept of fairness is born at the right time. Therefore, while considering the efficiency of resource allocation, optimizing the allocation of central and local tax power must take into account the rationality of the distribution of tax power and carry out the principle of tax fairness. In terms of the responding strategies, the allocation of tax rights between central and local governments should be based on the fair authorization to construct a normative path under the rule of law principle, based on the fair law enforcement to construct a technical path under digital supervision, and based on the fair benefits to construct a precise path tailored to local conditions.

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Transparency and Nominalization: On the Ideological and Institutional Reform of the Regulation of Shareholding Entrustment in China

AI Xi

Journal of Jiangxi University of Finance and Economics 2024, 0 (3): 125-136.

Abstract （40）

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There are various types of shareholding entrustment in China, including legal and illegal ones. On the one hand, shareholding entrustment can activate private investment and financing, promoting economic development, and on the other hand, it can also become a tool for money laundering and gray interest transactions, bringing many difficulties to the supervision of listed companies and the judicial trial of equity disputes. In terms of the current regulation of shareholding entrustment, due to unclear concepts, the concept of “Dormant Partnership”introduced in the civil law system did not fully adopt the strict concept of “Commercial Externalism”. In terms of the regulation of shareholding entrustment in listed corporations, the regulatory concept of “Complete Prohibition”has been adopted; plus the concept of “Dormant Partnership”in the Civil Law System and the strict “Commercial Externalism”, itself has contradictions and conflicts that cannot be reconciled logically. At the same time, China’s Partnership Enterprise Law has not introduced the concept of “Dormant Partnership”. Conflicts and contradictions in various regulatory concepts have led to the failure of regulatory measures, resulting in a proliferation of shareholding entrustment. The regulatory concepts of increasing equity transparency and nominalization in the Common law system have provided us with good insights. With reference to the reform achievements of the Common Law System, this article suggests to timely reform the Company Law and the Securities Law in accordance with the requirements of the FATF, update the regulatory concepts, increase equity transparency, and force shareholding entrustment to develop towards nominalization. It is also suggested to introduce the concept of “Substantial Interest Holder”, establish the corresponding supporting systems to guide the healthy development of shareholding entrustment behavior, and curb various illegal equity shareholding entrustment behaviors without harming the effective demands at the same time.

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The Path to Determine the Effectiveness of Commercial Laws’ Evasive Behavior

LIN Shao-wei, HONG Xi-qi

Journal of Jiangxi University of Finance and Economics 2024, 0 (2): 105-118.

Abstract （25）

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The effectiveness of commercial laws’ evasive behavior depends on its compatibility with the substantive legal order, and should be addressed separately from epistemology and instrumental theory to break away from the dilemma of inconsistent standards for judging the effectiveness of commercial laws’ evasive behavior. In terms of epistemology theory, the value elements and order involved in determining the effectiveness of commercial laws’ evasive behavior are different from those of civil laws’ evasive behavior. The court should match different judgment logics accordingly and make a more cautious negative evaluation of commercial laws’ evasive behavior. In terms of instrumental theory, strengthening legislative supply is not the optimal solution. Instead, we should start with judicial technology and construct a unified judicial judgment paradigm to limit the discretionary space. Therefore, it is advisable to establish a second-order equity model with the proportionality principle as the core. In view of the possibility of value error of the law as it is, the proportionality principle should be applied to make the first evaluation of commercial mandatory rules. For the “negative evaluation law”, evasive behavior should be recognized as legal and effective. For the “positive evaluation law”, the legal effectiveness of evasive behavior still needs to use the proportionality principle to make a second evaluation of its effective boundary. The evasive behaviors that satisfies the three elements of legitimacy of purpose, necessity of effect, and appropriateness of means should be judged as effective.

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Legal Remedies for Infringement of Employees’ Personal Information Rights and Interests

LIU Jie

Journal of Jiangxi University of Finance and Economics 2024, 0 (2): 119-136.

Abstract （53）

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The employer’s processing of the employee’s personal information is accompanied by the establishment, continuation and termination of the labor contract, and the infringement caused by the data processing also runs through the labor relationship. In workplace, employers’ illegal violations of workers’ personal data are mainly manifested in the forms of excessive collection, workplace monitoring and improper disclosure. The damage caused by the infringement of employees’ personal data presents a two-tier structure, namely, the damage caused by the infringement of personal data itself and the damage caused by the labor rights and interests derived from the infringement, the later mainly manifests in employment discrimination and wrongful dismissal. For the damage caused by the infringing information, employees can eliminate it through the right of deletion, withdrawal or correction; and they have the right to request the restoration of labor relations. If the damage is still irreparable, they can also claim compensation for material and spiritual damages. However, the damage to labor rights and interests caused by data processing cannot be fully remedied through the private law, and it is still necessary to return to the labor law. By expanding employees’ right to terminate their employment unilaterally, employers can be prevented and punished for their wrongful data processing. Collective contracts can be used to regulate data-processing activities in the industry, activate the functions of trade unions and compensate for the shortcomings of employees’ autonomy. The connotation of the labor standards should be updated to include the protection of employees’ rights and interests, and employees’ data infringement should be included in the scope of labor inspection and labor dispute resolution mechanisms.

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